BROTHERHOOD OF MAINTENANCE )
OF WAY EMPLOYES )
AWARD NO. lI
and ) CASE NO. 11
BNSF RAILWAY COMPANY )
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier improperly bulletined
and assigned Flagman Position 32010 at Northtown, Minnesota to Mr.
M. H. DeRosa beginning on October 25, 1999 and continuing (System
File T-D-1896-B111-00-0021 BNR).
(2) As a consequence of the violation referred to in Part (1) above, Rank
Flagman C. L. Rathbun shall now be compensated for eight (8) hours'
straight time and for all overtime service performed each day by Mr.
M. H. DeRosa in the performance of the aforesaid flagman service
beginning October 25, 1999 and continuing until the violation ceases."
FINDINGS:
Public Law Board No. 6538, upon the whole record and all the evidence,
finds that the parties herein are Carrier and Employes within the meaning of the
Railway Labor Act, as amended; that the Board has jurisdiction over the dispute
herein; and that the parties to the dispute were given due notice of the hearing and
did participate therein.
The instant claim contends that Carrier violated the Agreement by
improperly bulletining a Flagman position at Northtown, Minnesota on October 1,
1999 as a Foreman/Flagman and not as a Sectionman(Flagman. i Although the
Organization cited eighteen rules as the basis for the claim, it relies principally upon
Rule 5D, the seniority roster which establishes the position of "Flagman" as a Rank
' The Organization initially filed the claim on behalf of all 443 employees listed in the Track
Subdepartment Roster 1 Rank C. Carrier objected to this aspect of the claim, arguing that it violated Rule
42 of the Agreement by failing to provide fair notice of the identity of the appropriate Claimant. In its
February 5, 2001 letter confirming the parties' conference regarding the instant claim, the Organization
responded to the Carrier's objection by naming Flagman C. L. Rathbun as a sole Claimant. We find no
basis for a Rule violation based on
the amended
claim that is now properly before the Board.
P.L.B. No. 6538 Case No. 11
Page 2 Award No. 11
C Sectionman position. To the Organization, this language clearly prohibits the
Carrier from bulletining a Flagman position as a Foreman.
Tracing the history of the rosters on the predecessor railroads, the
Organization argues that the parties expressly agreed during negotiations for the
current Agreement to place the title of Flagman within the rank of Roster 1, Rank
C. If Carrier possessed the broad latitude it now claims, there would have been no
need to negotiate the rosters, the Organization asserts.
In addition, this claim does not involve incidental work. The Organization
contends that the instant case concerns the assignment of a position of more than
thirty days duration which has consistently been bulletined and assigned to Rank C
Flagmen. In support thereof, the Organization proffered copies of Carrier job
bulletins advertising Flagmen positions and the statement of M. De Rosa, who
indicated that he had flagged as a laborer for more than twenty years at several
locations.
Carrier's denial of the claim is based on its assertion that Flagmen positions
are not exclusively assigned to Sectionmen. Depending upon the qualifications
needed to perform the Flagman duties, the position can and has been assigned to
Foremen in the past, as even the bulletins produced by the Organization attest.
Indeed, the Carrier points out that the Organization has previously taken the
position that only Foremen can perform Flagman duties. Carrier also argues that
flagging work is not reserved to nor exclusively performed by Organization
employees. However, evidence in support of that latter assertion was not introduced
on the property and is therefore not properly before the Board.
Nevertheless, we agree with the Carrier's basic assessment of the claim. The
Organization, as the moving party in this contractual dispute, had the burden of
proving a violation of the Agreement. In a case such as this, the Organization must
show that there is an explicit reservation of work in the Agreement or that the work,
by history, tradition and custom, has been exclusively performed by Sectionmen.
Based on our review of the record, we find that the Organization's evidentiary
burden has not been met.
There is considerable precedent for the proposition that seniority rosters
such as Rule 5D do not reserve work. See, e.g., Third Division Award Nos. 36210;
37280; 36207; 36061. Moreover, while the Organization established that the
disputed work is at times performed by Sectionmen, it failed to provide evidence
that this work has been reserved exclusively to this group of employees. Therefore,
we must rule to deny the claim.
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P.L.S. No. 6538 Case No. 11
Page 3 Award No. 11
Claim denied.
u
s.
ANN S. KENIS, Neutral Member
Carrier Member Organiz tion Member
William A. Osborn Roy C. obinson
Dated thisd$-kday of.') 0Ae,) 2007.
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